Lawful Use of Drones by Non-State Actors: Who can kill?

The rapid advancement in and proliferation of drone technology make it necessary to consider the implications of the use of drones by the United States today for their potential use by non-state actors tomorrow. According to Peter Singer of Brookings, drones are a “game-changing technology, akin to gunpowder, the steam engine, the atomic bomb.” Unlike the atomic bomb however, drone technology is considerably more likely to end up in the hands of non-state actors, through either external purchase or internal development. Drones can proliferate cheaply and easily; surveillance drones have already spread rapidly among states and non-state entities, and similar proliferation of lethal drones may not be too far behind. The Pentagon conducted a study in 2012 in which it found that enemy use of drones could potentially be a “very serious threat” to U.S. military assets around the world. The Huffington Post argues that the findings suggest that lethal drones are “the equivalent of the Improvised Explosive Device (IED), a simple, cheap and effective weapon which has forced the U.S. to spend billions of dollars in defense while experiencing growing casualties.” Since the use of drones as weapons by non-state actors states seems almost inevitable, this fact raises a new question: is it lawful?

Can sub-state actors legally kill with drones?

In order to ask this question, it is not necessary to change the basic assumptions used when asking if it is lawful for state actors to do so: assume that the existence of a non-international armed conflict, the non-state actor is organized enough to be a party to an armed conflict, etc. The simple answer to this question is presumably “yes.” If a non-state actor otherwise obeys the laws of war, it should not matter that it uses a drone to kill enemies. Obama administration officials seem to support this stance in justifying the U.S.’s use of drones, arguing that the weapon used (so long as it is not banned by another international treaty) does not change the legality of lethal force in an armed conflict. In his consequential 2010 speech on the legal justification for lethal drones, former State Department Legal Adviser Harold Koh said:

[T]he rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict—such as pilotless aircraft or so-called smart bombs—so long as they are employed in conformity with applicable laws of war. (italics added)

Koh seems to argue that the use of drones in warfare is not really different from using a weapon like a gun, so long as the user respects the laws of war. He is correct that there are no regulations in international agreements to limit or prohibit the use of technologically advanced systems, but is he also implying that there shouldn’t be? The U.S. does not have to worry about drone strikes on its territory because it is currently so far ahead of other actors in both the offensive and defensive aspects of drone technology. However, the U.S. is unlikely to maintain that superior position for too much longer and most certainly would favor international regulations over the proliferation of drones. John Brennan, at the time President Obama’s counterterrorism advisor, expressed a similar sentiment in a 2012 speech that included the first official reference to the CIA’s drone program:

As a matter of international law, the United States is in an armed conflict with al Qaeda, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense. There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat. (italics added)

As the opposing parties in the current armed conflict, would al Qaeda, the Taliban and associated forces be permitted to use drones against American targets, provided they possessed the technology to do so?

The case of Hezbollah

While a scenario in which al Qaeda could legitimately threaten U.S. interests with a lethal drone is unlikely to play out, there are other non-state actors that may pose a serious threat against the state to which they are opposed. In October 2012, a small drone was able to break through Israeli airspace for 35 miles along the coastline before being shot down by defense forces. It appeared to be headed for a nuclear reactor and was believed to be on a reconnaissance mission into Israel. Hezbollah, the Islamic militant group based in Lebanon, claimed responsibility and publically stated that Iran, Hezbollah’s state sponsor, provided it with the drone. Analysts said that Hezbollah has sent several drones into Israel in the past, some of which Israel does not bother to shoot down, and that its drones are not sophisticated. However, this event highlights a relationship that the United States does not necessarily appreciate in its conflict with al Qaeda and the Taliban. What if these groups had state sponsors that could provide drone technology that could seriously threaten U.S. interests abroad, if not at home? Would we permit al Qaeda or the Taliban to use lethal drones as simply another weapon in their arsenals against U.S. military assets in the Middle East, given that we are still engaged in an armed conflict with those groups? It is unlikely that we would see it that way.